Asst. Prof.
Priya Totale
SNBP Law College
Conduct of Arbitral Proceedings
Introduction:
Section 18 to 27 of the Arbitration and Conciliation Act, 1996 deals with the
conduct of arbitral proceedings. The Act provides that in arbitral proceedings “all
parties to be treated with equality and they should be given reasonable
opportunity to present their case” (Section 18). This means that the Arbitral are
bound to act independently and without bias. They are required to be not guilty
of misconduct. They are also not required to act during the absence of the parties.
The main rules for the conduct of arbitral proceedings are followings:
Determination of Rules of Procedure: Section 19
1. According to Sec.19(1) the arbitral tribunal shall not be bound by the Code of
Civil Procedure, 1908 or the Indian Evidence Act, 1872.
2. Subject to this Part the parties are free to determine the procedure for the
conduct of arbitral proceedings. Parties can decide the rule through an
agreement. Arbitral Tribunal is required to follow these rules.
3. If the parties fail to determine the rule of the procedure, then arbitral tribunal
shall conduct the proceedings by such methods which it thinks fit.
4. The arbitral tribunal also have power to determine the admissibility, relevance,
materiality and weight of any evidence.
Place of Arbitration: Section 20
1. The first right to determine the place of Arbitration has been provided to the
parties. The parties can determine the place of Arbitration.
2. If the parties fail to do so, the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case, including the
convenience of the parties.
Asst. Prof. Priya Totale
SNBP Law College
3. Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may,
unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses,
experts or the parties, or for inspection of documents, goods or other property.
Commencement of Arbitral Proceedings: Section 21
If the arbitration agreement does not mention the date of commencement of the
arbitral proceedings, the arbitral proceedings in respect of that dispute commence
on the date on which a request for that dispute to be referred to arbitration is
received by the respondent.
Language: Section 22
The language to be adopted by the arbitral tribunal for arbitral proceedings shall
be that which is agreed by the parties. In the absence of such agreement, language
shall be decided by the arbitral tribunal. Language should be such which the
arbitrator can understand. If any documentary evidences are in a language which
the arbitrator does not understand, then such evidences are required to be
translated in the language agreed upon by the parties or determined by the arbitral.
Statements of Claim and Defence: Section 23 of the Act lays down that:
1. Within the period of time agreed upon by the parties or determined by the
arbitral tribunal, the claimant shall state the fact supporting his claim, the
points at issue and the relief or remedy sought, and the respondent shall state
his defence in respect of these particular.
2. The parties may submit with their statements all documents they consider to
be relevant or may add a reference to the document or other evidence they will
submit.
3. Unless otherwise agreed by the parties, either party may amend or supplement
his claim or defence during the course of the arbitral proceedings, unless the
Asst. Prof. Priya Totale
SNBP Law College
arbitral tribunal considered inappropriate to allow the amendment or
supplement having regard to the delay in making it.
4. The statement of claim and defence under this section shall be completed
within a period of six months from the date the arbitrator or all the arbitrators,
as the case may be, received notice, in writing, of their appointment.
Hearings and Written Proceedings: Section 24
1. The Tribunal shall decide whether to hold an oral hearing for the presentation
of evidence or argument, or whether the proceedings shall be conducted on
the basis of documents and other materials. The Arbitral Tribunal shall hold a
hearing, at an appropriate stage of the proceedings, on a request by a party
unless the parties have agreed that no oral hearing shall be held.
2. The parties shall be given sufficient advance notice of any hearing and of any
meeting of the Arbitral Tribunal for the purpose of inspection of documents,
goods or other property.
3. All statement, documents or other information supplied to, or application
made to the arbitral tribunal by one party shall be communicated to the other
party, and any expert report or evidentiary document on which the Arbitral
Tribunal may rely in making its decision shall be communicated to the parties.
Default of a Party: Section 25
1. The Act empowers the arbitrator to terminate the proceedings where the
without any sufficient cause, the claimant fails to communicate his statement
of claim within the stipulated period.
2. Where the respondent fails to communicate his statement of defence the
arbitral tribunal shall continue the proceedings without treating that failure in
itself as an admission of the allegations by the claimant.
Asst. Prof. Priya Totale
SNBP Law College
3. Where a party fails to appear at an oral hearing or to produce documentary
evidence, the Arbitral Tribunal may continue the proceedings and make the
arbitral award on the evidence before it.
Appointment of Expert by Arbitral Tribunal: Section 26
1. The Act empowers the tribunal to appoint one or more experts to report to it
in specific issues to be determined by the arbitral tribunal. The provision also
requires the party to give expert any relevant information or to produce, or
provide access to any relevant documents, goods or other property for his
inspection.
2. If a party so requests or if the arbitral tribunal considers it necessary, the
expert shall, after delivery of his written or oral report, participate in an oral
hearing where the parties have the opportunity to put questions to him and to
present expert witnesses in order to testify on the points at issue.
3. The expert shall, on the request of a party, make available to that party for
examination all documents, goods or other property in the possession of the
expert with which he was provided in order to prepare his report.
Court Assistance in Taking Evidence: Section 27
1. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may
apply to the court for assistance in taking evidence.
2. The application shall specify- (a) The names and addresses of the parties and
the arbitrators; (b) The general nature of the claim and the relief sought; (c)
The evidence to be obtained.
3. The court may, within its competence and according to its rules on taking
evidence, execute the request by ordering that the evidence be provided
directly to the arbitral tribunal.
4. The court may, while making an order under sub-section (3), issue the same
processes to witnesses as it may issue in suits tried before it.
Asst. Prof. Priya Totale
SNBP Law College
5. Persons failing to attend in accordance with such process, or making any
other default, or refusing to give their evidence, or guilty of any contempt to
the arbitral tribunal during the conduct of arbitral proceedings, shall be
subject to the like disadvantages, penalties and punishments by order of the
court on the representation of the arbitral tribunal as they would incur for the
like offences in suits tried before the court.
